Anaxar Films to Live Long and Prosper?

Last month, JJ Abrams announced the intention of CBS and Paramount Pictures to drop their copyright infringement lawsuit against Axanar Productions concerning the production company’s two Star Trek fan-made films. The announcement ended a six-month saga of galactic proportions…or so it seemed. Contrary to Abrams’ comments, and their own tweets concerning settlement talks, these major film studios – owners of the copyright in the Star Trek franchise – appear to have shown no intention to back down from the fight.

The suit started last December, with CBS and Paramount filing for an injunction against the unauthorized production of feature-length Star Trek prequel Axanar (in pre-production) and seeking damages in connection with both Axanar and its predecessor, the short film Prelude to Axanar (released online in July 2014).

The films first came to the attention of the studios as a result of their unprecedented success on crowdfunding platforms, Indiegogo and Kickstarter, together raising over $1.2 million from Star Trek’s notoriously zealous fan base. However, the suit ostensibly came as a surprise to the films’ principal Producer, Alec Peters, who believed the studios had indicated a willingness to tolerate the venture in the weeks prior to the complaint on the condition that neither the short nor the feature were ever commercially released.

Peters for his own part has suggested that the actual logo and phrase “Star Trek” are used “as little as possible” in the films, and that no items carrying the intellectual property of the Star Trek franchise have been sold by Axanar Productions. In fact, according to Peters, the films actually borrow sparingly from the original series, employing only a few characters, the Enterprise, and the general idea of, for example, the Federation, Klingons, and the Battle of Axanar.

Paramount and CBS beg to differ in this assessment: their complaint cites a veritable universe of alleged copyright infringements. The 48-page claim lists elements ranging from “pointy ears, and…distinctive hairstyle,” to “the look and feel” of entire planets, and ultimately, “[t]he feel and mood” of the entire Star Trek franchise. The Axanar works, in the view of Paramount and CBS, are unauthorized derivatives that constitute neither parody nor fair use under US copyright law.

The case raises many key issues in relation to fan-produced content, including:

Can fan-made content claim the fair use exception under US copyright law?

If copyright holders know of and tolerate the production of such works, does an implied licence arise?

What are the obligations of crowdfunding platforms and producers with respect to fundraising campaigns that, arguably, facilitate copyright infringement?

At what point, if ever, does derivative fan content become a transformative work that assumes a life of its own beyond the reach of the “official” copyright holders?

This last question is captured by the uniquely bizarre submissions relating to the use of Klingon in Axanar, best – and most entertainingly – captured in the amicus brief filed by the Language Creation Society, and written partially in Klingon. Yes, we said Klingon! The brief argues that to make Klingon or any other invented language the subject of copyright law “robs the world of valuable expressive works,” and that the language “broke its chains and took on a life of its own” subsequent to use in the Star Trek series.

CBS have now issued policy guidelines through StarTrek.com for fans seeking to make non-infringing Star Trek works in the future, but the studios have given no further indication of an intention to drop the suit. With such fundamental US copyright questions on the line, perhaps both parties should take heed of the Klingon proverb cited by the Language Creation Society in their oddly colourful brief: “sometimes the only thing more dangerous than a question is an answer…”.

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